What are the Criminal Code provisions for sexual assault?
Under section 271 of the Criminal Code of Canada, a person can be charged for committing a sexual assault. This section of the Code gives the range of possible punishments. This range will vary depending on how the Crown Attorney chooses to prosecute the case. If the Crown Attorney prosecutes the case by indictment (used in the more serious cases), the maximum is ten (10) years in jail. If the Crown Attorney chooses summary conviction (less serious cases, and a faster procedure), the maximum punishment is eighteen (18) months. The range of possible sentences will also change depending on the age of the victim.
Even though this part of the Code gives the possible sentences for sexual assault, it does not define sexual assault. In fact, it simply says “sexual assault” as though no definition is necessary. In order to know the meaning of the phrase, we have to consider what an “assault” is.
The definition of “assault”
Section 265(1) of the Code gives three examples of when someone assaults another person. The first is when a person directly or indirectly applies force to another person without that other person’s consent. The second is by attempting or threatening to apply force without the second person’s consent. Lastly, if a person is holding a weapon and stops or interferes with another person, that person will be guilty of assault.
How much force is required for an action to be an assault?
Our courts have said that an assault can take place even with the least amount of touching. This is a very broad definition. In fact, this can lead to some very strange consequences. If a person taps someone on the shoulder to get their attention, that would technically be an assault. Another example of an assault would be a father trying to put a scarf on his daughter while she refuses to put it on. The Supreme Court of Canada has recognized the possibility of these absurd consequences, and has concluded that the Government of Canada would not intend for those kind of situations to happen. It is up to the courts to interpret the meaning of “assault” and to give it a clearer meaning over time as different cases come up.
An assault that is sexual in nature
Under section 265(2) of the Code, the definition of assault applies to all forms of assault, including sexual assault. From this, we can see that a sexual assault is an assault that is sexual in nature. Put another way, it is an assault that takes place in circumstances that violate the sexual dignity of another person.
What does it mean for an assault to be sexual in nature? Whether the assault is sexual is determined by asking whether a reasonable person, in light of all the circumstances, would say the assault was sexual. In order to determine this, the court looks to many factors, such as the body part that was touched, the situation in which the touching occurred, the words and gestures that happened along with the act, and any other circumstance surrounding the action.
Sexual gratification not necessary
Some people may think that it is only a sexual assault if it was committed for the purpose of sexual pleasure or gratification. This is not true. There have been cases where a person committed an assault for the sake of disciplining his child. The courts considered the nature of the discipline (the accused had squeezed his son’s genitals) and found him guilty of sexual assault.
In another case, an accused person had touched a person’s breasts and genitals as a joke. Though there was no intent to receive sexual gratification from this action, the accused was still charged with and convicted of sexual assault. This is important to remember, as many people think that sexual pleasure is a necessary element of sexual assault.
Consent – The victim’s state of mind
Lack of consent is one of the most complicated elements of a sexual assault. Determining whether there was no consent in a case of sexual assault is a matter of looking at the victim’s actual state of mind at the time the assault happened. Obviously, judges and juries cannot know with absolute certainty what the victim was thinking at the time. If a person claims that she did not consent, that statement will have to be weighed with all of the other evidence, including her actions at the time of the alleged assault. If the judge or jury decides that they believe the victim when she says she did not consent, then the judge or jury will have to conclude that there was, in fact, no consent.